JUDGMENT :

PRAKASH GUPTA, J.

1. Instant second appeal has been preferred against the judgment and decree dated 28.01.2017 passed by Additional District Judge No. 3, Alwar, (hereinafter referred to as the "Appellate Court") in Civil Regular Appeal No. 68/2013 whereby the Appellate Court dismissed the appeal and upheld the judgment and decree dated 23.04.2007 passed by Civil Judge (J.D.) & Judicial Magistrate No. 4, Alwar (hereinafter referred to as the "trial Court") in civil case No. 34/11/2004.

2. Brief Facts giving rise to the present appeal are that the appellants-plaintiffs (hereinafter referred to as "the plaintiffs") filed a suit against the respondents-defendants No. 2 to 4 (hereinafter referred to as "the defendants") for permanent injunction. The suit of the plaintiffs was dismissed by the Trial Court vide judgment dated 23.04.2007.

3. Being aggrieved by the same, the plaintiffs preferred an appeal before the Appellate Court which also came to be dismissed vide judgment dated 28.01.2017. The plaintiffs therefore, has filed the present second appeal.

4. It is submitted by learned counsel Shri Gajendra Singh Rathore appearing for the plaintiffs that an application under Order 41 Rule 27 CPC for taking evidence on record was filed before the Appellate Court but the said application has not been decided by the Appellate Court. Therefore, only on this ground, the judgment and decree of the Appellate Court is liable to be set aside and the matter should be remanded to the first Appellate Court.

5. On the other hand, learned counsel for the respondents Shri Ajay Goyal fairly admits that the application filed by the plaintiffs under Order 41 Rule 27 before the Appellate Court has not been disposed of by the Appellate Court.

6. Heard learned counsel for the parties and perused the material available on record.

7. Having regard to the submissions made by learned counsel for the parties, I am satisfied that in this appeal following substantial question of is are involved:

"Whether the appellate court was right in not deciding the application filed by the appellant under Order 41 Rule 27 CPC?"

8. It is not in dispute that an application under Order 41 Rule 27 CPC was filed by the plaintiffs before the Appellate Court and the same has not been decided by the Appellate Court.

9. In Hakam Singh & Anr. Vs. State of Haryana & Ors.: AIR 2008 SC 2990, Hon'ble Apex Court has observed as under:-

"That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the case to the High Court for decision of the Appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the Code".

10. In Jatinder Singh and Another Vs. Mehar Singh and Others: (2009) 17 SCC page 465 Hon'ble Apex Court in para No. 4 has observed as under:-

"While deciding the second appeal, however, the High Court had failed to take notice of the application under order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law."

11. In the light of aforesaid, substantial question of law is decided accordingly. The impugned judgment passed by the Appellate Court is set aside and the matter is liable to be remitted back to the Appellate Court for a decision afresh.

12. Resultantly, the appeal is allowed and the judgment and decree dated 28.01.20